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C
Criminal Law — Sentence — Drug offences — Interpretation of sub-s 39B(2A)
— Sentencing — Factors to be considered — Balancing public interest and
personal interest — Concurrent sentence for offences in the same transaction
— Dangerous Drugs Act 1952 s 39B(2A)
D
The accused was charged with two counts of trafficking under s 39B(1)(a) of
the Dangerous Drugs Act 1952 (‘the DDA’), punishable under s 39B(2) or
s 39B(2A) of the DDA, wherein the accused tried to evade arrest in which upon
arresting the accused, the car that the accused was using was examined, and on
E examination of a blue denim bag found on the front passenger seat of the car
the police found the drugs. The accused also, after being read the caution under
s 37B(1)(b) of the DDA admitted to keeping drugs in his rental house in which
he subsequently lead the police to its discovery. The accused pleaded guilty to
both charges. The court having been satisfied that there were no reason that
F would render the plea to be qualified or could be vitiated by any other reason,
after the prosecution tendered the facts and exhibits to which he also admitted
them without any qualification, he was then convicted of the charges.
Held:
G (1) From a reading of the new sub-s 39B(2A) of the DDA, it was patently
clear that this new provision was to create two classes of cases in terms of
degree of probity in the commission of the offence and this provision
catered to the lower degree whereby the case against the accused.
Subparagraph (a) and (b) were to be read conjunctively, inter se and to be
H read disjunctively from sub-para (c) and (d) (see para 14).
(2) In meting out that sentences and in determining whether to grant a life
imprisonment sentence or impose the mandatory death sentence, the
court should adopt the principle that public interest was of paramount
I importance and should outweighed the personal interest of the accused
(see para 15).
(3) The court had considered that the accused had pleaded guilty and this
had saved the court’s time and public fund enormously and substantially.
The court had also considered the interest of the accused, inter alia, that
368 Malayan Law Journal [2019] 12 MLJ
he was in early 20s at the time of the offence, married and worked as a A
lorry driver and stayed with his parents. This was also his first offence. He
was both remorseful and regretful and wanted to turn over a new leaf
upon completion of serving his prison sentence. The accused also
suffered severe sickness in prison. In the circumstances of the case, having
balanced the interest of the public and the interest of the accused and the B
objective of the amendment, the court exercised its discretion to sentence
the accused to life imprisonment (see paras 29–31).
(4) It had been proven that whipping was an effective deterrent. The
amendment made it plain that the number of strokes was 15 and in the C
present circumstances, the court was of the view that the maximum
strokes should be meted to the accused (see para 32).
(5) As the present offence was committed on the same day, at the same time
and at the same place with that of the other offence and that there was
D
continuity of action and purpose, hence clearly the one transaction
principle applied. What was more, the accused was charged for
committing the same offence and under the same section of the DDA.
Thus, the offences were also not distinct to each other. Hence the
sentence should run concurrently (see para 37).
E
[Bahasa Malaysia summary
Tertuduh di tuduh dengan dua pertuduhan pengedaran dibawah s 39B(1)(a)
Akta Dadah Berbahaya 1952 (‘ADB’) yang boleh dihukum dibawah s 39B(2)
atau s 39B(2A) ADB, yang mana tertuduh telah cuba untuk mengelak F
daripada ditangkap dan semasa beliau ditangkap, kereta yang tertuduh
gunakan telah diperiksa, dan selepas pemeriksaan satu beg berwarna biru yang
ditemui di bahagian kerusi penumpang hadapan pihak polis telah menemui
dadah tersebut. Tertuduh juga, selepas dibacakan amaran dibawah s 37B(1)(b)
ADB mengakui menyimpan dadah dalam rumah sewanya yang mana dia G
kemudiannya membawa pihak polis kepada penemuannya. Tertuduh telah
mengaku salah atas kedua-dua pertuduhan. Mahkamah setelah berpuas hati
bahawa tiada sebab yang akan menyebabkan pengakuan tersebut berkecuali
atau boleh digagalkan untuk apa-apa sebab, selepas pendakwaan
mengemukakan fakta kes dan ekshibit yang mana diakui tanpa apa-apa H
pengecualian, dia telah disabitkan dengan pertuduhan-pertuduhan.
Diputuskan:
(1) Berdasarkan pembacaan sub-s baru 39B(2A) ADB, adalah jelas bahawa
peruntukan baru ini adalah untuk mengadakan dua kelas berdasarkan I
tahap keterlibatan dalam perlakuan kesalahan dan peruntukan ini
sepertimana kes terhadap tertuduh. Sub-perenggan (a) dan (b) perlu
dibaca secara bersama, inter se, dan dibaca secara berasingan daripada
sub-perenggan (c) dan (d) (lihat perenggan 14).
Public Prosecutor v Mohamad Hafizul bin Che Mohamad
[2019] 12 MLJ Zahid and another case (Ahmad Bache J) 369
H Cases referred to
Amrita Lal Hazra vs Emperor (1915) ILR 42 Cal 957, HC (refd)
Annantan Subramaniam v PP [2006] MLJU 648; [2007] 8 CLJ 1, HC (refd)
Bachik bin Abdul Rahman v PP [2004] 2 MLJ 534, CA (refd)
Jayaraman & Ors v PP [1979] 2 MLJ 88 (refd)
I Mohamed Abdullah Ang Swee Kang v PP [1988] 1 MLJ 167, SC (refd)
PP v Loo Choon Fatt [1976] 2 MLJ 256 (refd)
PP v Prabu s/o Veeramuthu & Ors [2009] 3 MLJ 838, HC (refd)
R v Ball (1951) 51 256 (refd)
Raja Izzuddin Shah v PP [1979] 1 MLJ 270 (refd)
370 Malayan Law Journal [2019] 12 MLJ
Sau Soo Kim v PP [1975] 2 MLJ 134; [1975] 1 LNS 158, FC (refd) A
Tan Sri Abdul Rahim bin Mohd Noor lwn Pendakwa Raya [2001] 1 MLJ 193,
HC (refd)
Legislation referred to
Criminal Procedure Code s 288(1) B
Dangerous Drugs Act 1952 s 39B, 39B(1)(a), (2), (2A), (2A)(a), (2A)(b),
(2A)(c), (2A)(d)
Penal Code ss 304(a), 326, 376
Nor Hamizah bt Ghazali (State Legal Advisor, Kelantan State Legal Advisor’s C
Office) for the plaintiff.
Ariff Azami bin Hussein (Azizul & Ariff ) for the defendant.
Ahmad Bache J:
D
BACKGROUND
[1] The accused was charged before this court with two counts of
trafficking in methamphetamine; a dangerous drugs; an offence under
s 39B(1)(a) of the Dangerous Drugs Act 1952, punishable under s 39B(2) or E
s 39B(2A) of the same Act. The charges were read and explained to the accused.
The accused stated clearly that he understood the charges. He wanted to plead
guilty to both charges.
F
[2] The nature and consequence of his plea of guilty were then explained to
him. Again the accused unequivocally stated that he understood the nature and
consequences of that plea. The accused then pleaded guilty to both charges
which plea was accepted by this court as the court was satisfied that there are no
occasions that would render the plea to be qualified or that the plea could be G
vitiated by any other reasons. The prosecution then tendered the facts and
exhibits and the same were explained and then admitted by the accused, here
too, without any qualification. The accused was then convicted of the charges.
[3] Having heard the accused’s plea in mitigation and having given my H
utmost and anxious consideration of the facts and the law, I have sentenced the
accused to life imprisonment together with 15 strokes of whipping for each
charge.
[5] The accused had filed an appeal against the sentence of whipping, on
the basis that the total number of whipping ought to be capped at a maximum
Public Prosecutor v Mohamad Hafizul bin Che Mohamad
[2019] 12 MLJ Zahid and another case (Ahmad Bache J) 371
[6] I have indicated that the full grounds will be given in the event of an
appeal. The following are my grounds in arriving at the decision.
B THE CHARGE
A [9] It must be stated that the confiscated drugs were handed to the
investigating officer by the complainant who, thereafter sent the same to the
chemist. On analysis, the chemist affirmed that the drugs were
methamphetamine weighing 89.8g and 843.5g respectively.
B [10] Hence the charges against the accused.
[12] The concerned amendment introduced amended sub-s (2) and added a
E new sub-s (2A) to s 39B of the Act, giving the court a discretion to impose a
sentence of life imprisonment together with the mandatory minimum
15 strokes of whipping, instead of the mandatory death sentence. That
subsection reads as follows:
(2A) In exercising the power conferred by subsection (2), the Court in imposing the
F sentence of imprisonment for life and whipping of not less than fifteen strokes, may
have regard only to the following circumstances:
(a) there was no evidence of buying and selling of a dangerous drug at the time
when the person convicted was arrested;
(b) there was no involvement of agent provocateur; or
G
(c) the involvement of the person convicted is restricted to transporting,
carrying, sending or delivering a dangerous drug; and
(d) that the person convicted has assisted an enforcement agency in
disrupting drug trafficking activities within or outside Malaysia.
H
[13] The arguments turn on the proper interpretation to be interpreted on
this new subsection.
I [14] From a reading of the new subsection it is patently clear that this new
provision is to create two classes of cases in terms of degree of the accused’s
involvement in the commission of the offence and this provision caters to the
lower degree whereby the case against the accused:
(a) does not involve the buying or selling of a dangerous drugs;
374 Malayan Law Journal [2019] 12 MLJ
[15] More importantly the subsection requires the accused to have assisted B
the enforcement agency in disrupting drug trafficking activities within or
outside Malaysia.
[16] It is not in dispute that both the prosecution and the accused agreed that
the accused fulfilled all the requirements under sub-s 2A save and except C
para (d) which is the subject of argument by parties (PP and defence counsel).
[17] To my mind and upon a proper construction, the way the provision is
drafted admits to an interpretation that the provision is to be read disjunctively,
D
in that there is a word ‘or’ appearing after sub-para (b). This to my mind
dictates that the accused is entitled to be considered to be sentenced to life
imprisonment if he brings himself within either sub-para (a) and (b) OR (c)
and (d). In other words sub-para (a) and (b) are to be read conjunctively, inter
se and to be read disjunctively from sub-para (c) and (d). E
[18] Thus in the present case as there is no dispute that the accused had
fulfilled sub-para (a) and (b), the accused then is entitled to be sentenced to a
life imprisonment instead of death sentence.
F
[19] Even if I am wrong in the manner that I have taken in interpreting the
provision and that the paras (a)–(d) must be read conjunctively, I am of the
considered opinion that the accused had also fulfilled the requirement under
sub-para (d). I say so, for the following reasons.
G
[20] First, in my view the word ‘assisting’ and ‘disrupting drug trafficking’
must be read in favour of the convicted person and not restrictively in the
determination of the appropriate sentence, since the Act does not offer any
definition or explanation on the same. H
[21] Secondly the facts of the case as tendered by the prosecution showed
that the accused’s involvement was only to deliver the drugs in his house found
in the car and to keep them in his house. Thereafter he had co-operated fully by
leading to the discovery of more drugs (with larger quantity) which would not I
have otherwise been discovered had the Accused acted differently. The
discovery of the drugs will no doubt directly stop the drugs from being
circulated in the open market as it were and in other words, had the effect of
disrupting any drug trafficking activities.
Public Prosecutor v Mohamad Hafizul bin Che Mohamad
[2019] 12 MLJ Zahid and another case (Ahmad Bache J) 375
A [22] Though that arrest did not culminate into an arrest of other traffickers,
this court is of the considered opinion that there is no such requirement as
sub-para (d) is silent on this point. In the upshot I had come to the conclusion
that sub-para (d) was also fulfilled.
B [23] In meting out that sentences and in determining whether to grant a life
imprisonment sentence or impose the mandatory death sentence, the court
should adopt the principle that public interest is of paramount importance and
should outweigh the personal interest of the accused (R v Ball (1951) 51 256)
C
and Public Prosecutor v Loo Choon Fatt [1976] 2 MLJ 256).
[24] However the accused’s personal interest should not be disregarded at all
(see Tan Sri Abdul Rahim bin Mohd Noor lwn Pendakwa Raya [2001] 1 MLJ
193). There are circumstances in which public interest itself warrants that the
D accused should not be put behind bars for far too long as that will do more
harm than good as it might cause a crushing effect on him, and could turn him
into a hardened criminal.
[26] Hence this court needs to strike a balance in order to do justice to the
accused and to the public. Towards that end, this court had embarked on a
balancing exercise, balancing the public interest with that of the accused’s
G interest.
[28] In the case of Mohamed Abdullah Ang Swee Kang v Public Prosecutor
[1988] 1 MLJ 167, the court said:
376 Malayan Law Journal [2019] 12 MLJ
We have to look at the overall picture of what is the right sentence for the total A
involvement, the total degree of criminality involved, and we have to keep the
sentences in perspective …
A [31] I have also considered the interest of the accused as follows, inter alia,
that he was 28 years old at the time of the offence. He is now a divorcee, with
a small child from that marriage now under his care. This was also his first
offence. He was both remorseful and regretful and wanted to turn over a new
leaf upon completion of serving his prison sentence. The accused also suffered
B severe sickness in prison. This court also took into consideration that any other
sentence to be meted out will have an adverse impact on the young child and
the accused and his family.
C
[32] In the circumstances of this case, having balanced the interest of the
public as mentioned earlier and the interest of the accused and the objective of
this amendment, in the exercise of my discretion, I sentenced the accused to life
imprisonment term with effect from the date of his arrest which was
22 September 2016.
D
[33] Regarding the order of whipping, I have this to say. The amendment
made it plain that the minimum number of strokes is 15 and in the present
circumstances I am of the view that the minimum strokes be meted out on the
Accused. Whipping, in my view has been proven to be an effective deterrent.
E And this court notes that if the sentence of whipping is to be imposed, the
number of strokes must be sufficient to deter those who think they can avoid
detection and arrest from the authorities and thereafter breaking the law, and
making profit out of this crime. In the circumstances this court is of the
considered opinion that 15 strokes is enough for him to suffer the excruciating
F pain of whipping. Any higher than that will have physical effect on the accused.
[36] This can be well explained by referring to the case of Public Prosecutor v
Prabu s/o Veeramuthu & Ors [2009] 3 MLJ 838. Based on the facts of the case
378 Malayan Law Journal [2019] 12 MLJ
both the accused were charged with two charges of culpable homicide not A
amounting to murder under s 304(a) of the Penal Code. The court ordered the
sentences of 16 years’ imprisonment on each charge to run concurrently since
the offences were committed in a single transaction.
[38] Reverting back to the case at hand, in the light of the authorities and the
laws averted to earlier, as the present offence was committed on the same day,
at the same time and at the same place with that of the other offence and that
there was continuity of action and purpose, hence clearly the one transaction D
principle applies. What is more, the accused was charged for committing the
same offence and under the same section of the Act (the DDA 1952). Thus the
offences are also not distinct to each other. Hence the sentence should run
concurrently.
E
[39] By virtue of s 288(1) of the CPC, understandably the maximum
number of whipping to be capped at 24 strokes.
CONCLUSION
F
[40] In upshot this court sentenced the accused to imprisonment for life and
15 strokes of whipping. Order accordingly.
Order accordingly.
G
Reported by Izzat Fauzan